FAQs About San Diego Family Law and Domestic Violence Issues
Answers to Frequently Asked Questions
Domestic violence can have a significant impact on family law cases. If you are going through a divorce or child custody proceeding, any past domestic violence incidents will have an impact on how the court views what is best for your children. Whether you were the victim of domestic abuse or if you've been accused of domestic violence in the past, it's important you understand how that history will impact your current situation.
Q. Can domestic violence impact child custody?
Q. Do I need a restraining order?
Q. My ex is stalking me. What can I do?
Q. What happens at a domestic violence hearing?
Q. Can I fight domestic violence charges?
Q. Do I need an attorney?
Q. What is the California Domestic Violence Prevention Act?
Q. Who is protected by the Domestic Violence Prevention Act?
Q. What is the definition of abuse in the Domestic Violence Prevention Act?
Q. What if the abuser was under the influence of alcohol or drugs?
Q. What if the victim is under threat of imminent danger from their abuser?
Q. Is there any danger that the Domestic Violence Prevention Act could be used to unfairly damage a person?
Here are answers to a few commonly asked questions on domestic violence issues:
Q. Can domestic violence impact child custody?
During a custody determination hearing, the court will try to make decisions in the best interests of the children. A proven history of domestic violence could determine which parent will receive primary custody. In some cases, incidents of domestic violence will allow the court to take the children away from one parent completely. However, depending on the circumstances and the nature of the allegations, parents accused of domestic violence can still get some visitation time at a neutral location or while under the supervision of a court-approved third party.
Q. Do I need a restraining order?
If you are currently in danger or fear for the well being of yourself and your children, you can seek a temporary restraining order, or temporary protective order. If approved, the judge will prevent the abusive parent from stalking, harassing or even going near you. You do not need to have a domestic violence case pending in court to receive an injunction. You can seek a protective order at any time.
Q. My ex is stalking me. What can I do?
Most stalking cases involve people who have been in a previous relationship. If your ex is stalking you, call the police and get the courts involved. You may be in danger and you have the right to seek a protective order. Also, notifying the authorities will create a record of this behavior that can be useful if the situation gets worse.
Q. What happens at a domestic violence hearing?
During a domestic violence hearing, a judge will determine if there is enough evidence to file a protective order in favor of the victim. The judge might also order for custody of the children to be given exclusively to the parent who is a victim of domestic abuse to protect the children.
Q. Can I fight domestic violence charges?
There are some cases where people face with domestic violence charges despite being innocent. If you've been falsely accused of domestic violence and are worried how it will affect your custody or divorce case, you should protect yourself by fighting back in court.
Q. Do I need an attorney?
Even the friendliest separations require the legal guidance of a skilled attorney. If you're involved in family law issues involving domestic violence, you need help to protect you and your family. The knowledgeable San Diego domestic violence family law attorneys at Mattis Law, A.P.C. can help protect your rights during this difficult time. Call us at (858) 328-4400 to discuss your case at no cost. We are here to help.
Q. What is the California Domestic Violence Prevention Act?
California’s Domestic Violence Prevention Act went into effect in 1993. The aim of the act is to streamline the process of obtaining a temporary restraining orders against an abuser. Prior to the bills’ passage, it was much more complicated, lengthy, and expensive to obtain such protection.
Q. Who is protected by the Domestic Violence Prevention Act?
The law applies to any victims of abuse who are married; family members who live together, such as children, parents, or siblings; and people who have had children together. It also, very broadly, applies to people who are currently, or at one time, were dating each other.
Q. What is the definition of abuse in the Domestic Violence Prevention Act?
The law defines abuse as a wide range of harmful behavior, including the following: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting (including via mail, electronic correspondence, or through an intermediary), coming within a certain distance of, or disturbing the peace of the other person.
An important aspect of the abuse definition is that it must be found to have occurred intentionally and/or recklessly. For abuse to be intentional, it means the abuser knew what they were doing and proceeded anyway, regardless of the harm it might cause the victim. Reckless behavior means that the abuser may not have thought through their actions, but they acted in a way that was irresponsible and had the potential to cause harm to the victim or others.
Q. What if the abuser was under the influence of alcohol or drugs?
Intoxication is not an excuse for committing domestic abuse. In fact, there are special provisions in the law if the abuser has exhibited violent behavior while under the influence of alcohol or drugs.
Q. What if the victim is under threat of imminent danger from their abuser?
The law has certain provisions that allow for immediate preventative measures if it is deemed that the victim is in imminent danger. In order to issue an emergency protective order, one of the following methods must be used:
- A court can issue a protective order following a judgment against the offending individual. The person is served the judgment, with specific documentation of the imposed restrictions.
- It’s possible to have a protective order issued after sending the accused abuser written notice. A hearing will then be set in order to address specific alleged behaviors. This type of protective order is intended to prevent specific acts of abuse.
- In extreme emergencies, an ex parte restraining order can be ordered and executed when it is deemed there is an imminently dangerous situation. This applies when the court has reason to believe that the victim(s) has reason to fear for their safety and there is reasonable evidence supporting that assertion. This situation applies when the threat may not be corrected in other ways.
Q. Is there any danger that the Domestic Violence Prevention Act could be used to unfairly damage a person?
The Domestic Violence Prevention Act is in place to protect victims from abusers and provides courts with a number of important means for enabling such protections. However, it is possible that the law can be leveraged unfairly.
When a petition for a protective order is filed ex parte, the other party is not given the chance to respond to the allegations immediately. Any protective orders are matters of public record, meaning anyone can see your name attached to them. The order will also show up in law enforcement databases.
While the vast majority of protective orders are based on merit, it is possible for someone to manipulate the system, and it is imperative that anyone who has been falsely accused of abuse mount a credible and aggressive defense as soon as possible to avoid irreparable harm.
If you ever feel unsafe and/or that your or another individual is in danger, please immediately call 9-1-1 for assistance. Even if police do not make an arrest, police reports can later be used as evidence to corroborate your request.
If you have any further questions regarding the California Domestic Violence Prevention Act, feel free to contact the legal team at San Diego’s Mattis Law, A.P.C. Dial (858) 328-4400 for a free consultation.
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